Summarised notes of Chapters 17 of the textbook for Study Unit 10: Dispute Resolution. Compiled by two students using the podcasts, slides, and study guide as guideline.
Study Theme 10: Dispute Resolution
Many countries have specialist labour dispute resolution institutions
Expeditious, affordable, informal, accessible and specialist knowledge
Extremely expensive, time consuming etc. to refer a matter to the High Court or
Magistrates Court. The Labour court and CCMA seek to alleviate these
problems.
CCMA plays a central role. All disputes must first be referred to conciliation
before arbitration or adjudication. Bargaining councils also plays a central role
The LRA also establishes the Labour Court (LC) and the Labour Appel Court
(LAC)
What is a Dispute?
Section 213 does not define a “dispute” in any substantive sense. The definition
simply states that a “dispute” includes an “alleged dispute”.
The Labour Appeal Court has noted that logically at minimum requires a
difference of opinion about a question.
Although it is often suggested that the LRA distinguishes between disputes of
right and disputes of interest, The Act does not distinguish between different
types of disputes in those terms.
Dispute of right refers to a situation where legal principles are contained in
legislation or case law, or common law etc. e.g. the right to not be unfairly
dismissed as codified in the LRA.
Disputes of interest deal with matters where new rights have to be established
e.g. situation where employees claim an increase in wages. Can refer this to
CCMA and then later on go on strike.
The primary concept at work in the statutory structure is that of a dispute about a
matter of mutual interest between employers and /or their collective organisations
on the one hand, and employees and/or trade unions on the other. resolution
structure established by the LRA.
o Wide enough to cover both disputes of right and disputes of interest.
o The LRA does not define the term ‘matter of mutual interest’ but it is used
in a number of different contexts.
o Matters of mutual interest are not defined by the LRA and have been
interpreted widely by the Courts.
o Section 134 provides generally that disputes about matters of mutual
interest may be referred to the CCMA. The same formulation is to be
found in section 51, in relation to disputes about matters of mutual interest
that arise within the registered scope of a bargaining council. The
definitions of strike’ and ‘lock-out’ in section 213 both refer to disputes
about matters of mutual interest, and effectively require that the purpose
, of any industrial action must be to resolve ‘a dispute about any matter of
mutual interest between employer and employee’.
o The Constitutional Court recently observed that the term ‘mutual interest’
is not defined in the LRA, but that it ‘serves to define the legitimate scope
of matters that may form the subject of collective agreements, matters
which may be referred to the statutory dispute-resolution mechanisms,
and matters which may legitimately form the subject of a strike or lock-
out’.
The LRA distinguishes three sub-categories of disputes within the broader
category of disputes about matters of mutual interest, and draws distinctions
between them based on the dispute resolution mechanism by which they must
ultimately be resolved.
o disputes that are arbitrable (in other words, disputes that must be
arbitrated by the CCMA or a bargaining council having jurisdiction).
o disputes that are justiciable (in other words, disputes that must be
adjudicated by the Labour Court); and
o disputes that must be resolved by the exercise of economic power (in
other words, disputes in respect of which parties can either strike or lock-
out in support of their demands).
The LRA indicates, in each case, which disputes are to be resolved by which
process.
There is no general rule that applies, although in most instances, disputes about
the creation of new rights (especially in relation to the wage-work bargain) are to
be resolved ultimately by economic power, whereas disputes about statutory
rights and rights established by existing collective agreements are usually
arbitrable or justiciable.
This is not a clean distinction – there are at least two categories of dispute where
parties have a choice of either arbitration of adjudication on the one hand or
industrial action on the other.
o These are disputes about organisational rights and disputes about
whether there is a fair reason for a dismissal on account of the employer’s
operational requirements.
o In both instances, an election must be made whether to strike in support of
a demand made of the employer or whether to refer the dispute to
arbitration (in the case of organisational rights) or to the Labour Court (in
the case of an unfair dismissal). An employee dismissed for reasons
related to operational requirements, when that employee is the only
employee dismissed by the employer, may elect to refer a dismissal
dispute to the Labour Court or to have the dispute arbitrated by the
CCMA.
The classification of a dispute as one concerning a matter of mutual interest,
and the further classification of the dispute as arbitrable, justiciable or the subject of
economic power, is not only an academic exercise. The classification of a dispute
determined whether the dispute may be referred to the statutory dispute resolution
processes at all, and, if it may, what options are available to the referring party.
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